Fort Worth daily gazette. (Fort Worth, Tex.) 1882-1891, 1887-12-02
THE HIGHER COURTS.
Synopses OF Decisions Rendered at the
Present Tyler Sitting Of The
Texas Higher Courts
Supreme Court and Commission of APP
peaIe acknowledgements in Some
Long Continued Casts.
Supreme COURT.
rrespondence OF the Gazette.

Gates from the American Legion of Honor,
each for $4,000. One of these WAS psya-
BILE to his wife on his death, the other pay
able to him, or to him and his children
on the death of his wife. Being unable
to meet the dues and assessments, the
husband of the appellant requested the or
der TO reduce the certificates to the sum
of $1,000 each. The secretary OF the or
der declined the proposition, and recon-
mended that he get some person to pay
the dues and assessments on both in con-
sideration OF a transfer of an interest in
each certificate. He sought and made
such an agreement with appellees in
writing, and it was agreed that appellees
pay the assessments and dues on both
policies, and for this they were to
receive $4,000 on leach GER
tifcate when they became payable.
Appel ,nt's husband died fifteen months
after this agreement, and from the date
Of said agreement until the death OF the
said party appelIees paid all the assess
ments and dues. On the death of appel
lant's husband the agreement so far as it
affected the benefit certificate payable to
appellant Yves cancelled, she paying or
agreeing to pay such sums as the appel
lees had paid thereon. It WAS shown that
appellant was cognizsnt of the said agree
ment between her husband and appellees,
aud that one month after her husbands
decsase she executed before q notary
public the following instrument: "Know
oil men by these presents, that I, Mrs.
Sallie Gillian. wife of Miniord Gillian,
deceased, hereby sgree that the contract
made and entered into py my husband
and Messrs. Afford Bros. of Overton,
Rusk county, Texas, remain in full force
and effect. and that I consent that the
agreement in the matter of his assigning
$4,000 by his policy on the A. L. of b.
shall be carried out in full and to the let
ter" Appellant kept $l400 of the policy
and turned the balance over to appellees.
The additional $500 was kept by appellant
with the consent of sppellees on her rep
resenting that she sorely needed this
money in addition to the $1,000 which be-
longed to her. This suit was brought to
recover the $1400 paid appellees by appel
liant, and also damages for its detention
The petition charged fraud, deceit, mis-
representation, oppression, ETC., on the
part of appellees. Held: The appellant
on the death of her husband doubtless had
rights under the certificate IN her favor,
which she could have enforced, through
which she might have realized G greater
sum than she received, but by her own
voluntary acts she has surrendered all
right to recover from the appellees the
sum which she paid to them.
Courts have power to enforce rights,
but they have no power when
rights have been voluntarily surrendered
by acts binding in law to reinstate and
enforce them simply because settlement
has oeen made in which one party did not
receive as much as under the law she
would have been entitled to. No error.
Affirmed. Stayton,
Max Elser vs.. II. W. GRADER; appeal
from E lis. Two writs of attachment
were levied upon stock of goods as the
property OF F. M. Donnelly, one in favor
OF appellant which was first in point of
time, and the other in favor of G. A. Ar
mold. Appellee claimed the property,
fled claimants bond, and upon a trial
Judgment was rendered in his favor, from
which Judgment Elser appealed. The
claimants bond was made payable sever
ally TO the two plaintiffs in the writ. Ap-
oellant excepted to the ond because the
same was made payable to plain
IFS In both attachments, which exceptions
we're overruled, and the ruling is here as
signed as error. Held: Not error. Our
statute being silent upon the point we
should consider that the Legislature in
tended that course to be pursued which
8 least oppressive to the parties, and
which conduces most to a speedy de-
Of the issues involved. APP
1ellee claimed the goods by virtue of
sale to him prior to the levy. Appellant
contends that the sale was fraudulent; the
court found it fair and of this ruling he
1ow Complains. Appellee was Donnelly's
ather-in-laW, anu had signed paper for
DIS accommodation until d. was in
Iebted to appellee in the sum of $3.50. |
Donnelly found he could not meet his |
and went to appellee for ad-
ice, and made full statement of his
business affairs to him. Appellee told |
lin he (Donnelly) was insolvent and |
hey then agreed that appellee would |
,uy the stock of goods for $250O. It |
vas agreed that $3.50 should 60 to |
xtinguish Donnelly's debt to appellee, |
nd appellee was to give his promissory
tote for the balance. Appellee executed |
us note for $3.50 to D nnelly, que one
ear from date. DonDelly took possess
ion of the goods as appellee's agent,
nd was dispOsing of them when the
wits of attachment were levied. It
GEMS that appellee urged D. to settle
With his creditors with the note, and
Irged him to settle with appellant first.
)onnelly offered the note at discount
nd secured note for the balance of ap-
ellant's debt, which proposition appel-
snt declined. Held: Appellee received
property, the value of which was consid-
rsbly in excess of his debt. He did not
bligste himself to pay the excess to 9TH
r preferred creditors, but executed his
ote, payable on long credit, to the ven
or. By this transaction he placed a con-
idereole psrt of the property not needed
o pay his own claim beyond the reach OF
he other creditors, and left the vendor
rec to deal with it as his own.
he necessary consequence of this was to
inder and delay the other creditors as to
ne surplus, ana the parties must be pre-
umed to intend the direct result of their
wn willful conduct. We hold that the
ransaction was fraudulent in law, and
ppellee cannot be heard to say that his
ltent was fair, and that Donnelly agreed
> appropriate the note to the payment of
is other creditors. The fraud of a part
ANTS the whole Transaction and IL muot